In a potentially related action, former Governor Kitzhaber is now demanding that the Oregon Department of Administrative Services give Kitzhaber’s attorney a chance to remove all the allegedly “privileged” e-mails from state servers before the State complies with a federal grand jury subpoena. Even more remarkably, although Attorney General Rosenblum has previously let attorneys for government officials simply refuse to produce relevant information, Kitzhaber’s attorney is now taking no chances and threatening Willamette Week with potential liability and demanding that Attorney General Rosenblum recuse herself from any investigation because she is married to the Willamette Week publisher.

Every attorney knows that confidentiality, even of attorney-client communications, is destroyed through voluntary disclosure to a third party. Former Governor Kitzhaber asked the State to hold copies of his personal e-mail, presumably because he was unwilling to simply read it in a browser and wanted it mixed with his other e-mail in a single, state-maintained box. In so doing, he was intentionally disclosing it to a third party and the leading Oregon evidence treatise says that “knowledge or lack of knowledge of the existence of the privilege appears to be irrelevant”—once he disclosed the material, the privilege was lost forever. The claim that this was all just a “mistake” for the e-mails to come into State possession does not pass the laugh test, and if Governor Brown and her appointees accept it, it will be clear that they are simply part of an ongoing criminal conspiracy masquerading as state government.